Furnace v. Cope et al

Filing 12

ORDER denying 11 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 5/31/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:16-cv-0420-BAM (PC)

EDWARD FURNACE,
Plaintiff,

ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL WITHOUT
PREJUDICE

v.
COPE, et al,

(ECF No. 11)
Defendant.

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Plaintiff Edward Furance (“Plaintiff”) is a state prisoner proceeding pro se in a civil rights

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action pursuant to 42 U.S.C. ' 1983. On May 18, 2016, Plaintiff filed a motion seeking the

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appointment of counsel. (ECF No. 11.) He argues that he requires appointed counsel to assist with

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gaining the identity of a John Doe defendant in time to comply with the deadline for service of

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the defendants under Federal Rule of Civil Procedure 4(m). He further argues that he has a Sixth

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Amendment right to counsel, and that appointing him counsel serves the public interest and the

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efficient and proper administration of justice.

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The Court reminds Plaintiff that this is a civil action, not a criminal action. Plaintiff does

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not have a constitutional right to appointed counsel in this civil action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff

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pursuant to 28 U.S.C. ' 1915(e)(1). Mallard v. United States District Court for the Southern
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District of Iowa, 490 U.S. 296, 298, 109 S. Ct. 1814, 1816 (1989). However, in certain

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exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to

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section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of securing and

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compensating counsel, the Court will seek volunteer counsel only in the most serious and

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exceptional cases. In determining whether “exceptional circumstances exist, the district court

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must evaluate both the likelihood of success of the merits [and] the ability of the [plaintiff] to

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articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal

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quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with

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similar cases almost daily. Further, at this early stage in the proceedings, the Court cannot make

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a determination that Plaintiff is likely to succeed on the merits, and based on a review of the

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record in this case, the court does not find that Plaintiff cannot adequately articulate his claims.

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Id.

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Regarding Plaintiff’s argument that he requires appointed counsel to assist with service of

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the complaint, that argument is premature. The Court is required to screen complaints brought by

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prisoners seeking relief against a governmental entity or officer or employee of a governmental

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entity. 28 U.S.C. § 1915A(a). Thus, Plaintiff’s complaint cannot be served until it has been

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properly screened. If Plaintiff’s complaint survives screening, a subsequent order regarding

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service will follow. Thus, Plaintiff’s duties regarding service of the complaint, including under

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Rule 4(m), have not yet been triggered in this matter.

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For the foregoing reasons, Plaintiff=s motion for the appointment of counsel (ECF No. 11)
is HEREBY DENIED, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

May 31, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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